FILED
NOT FOR PUBLICATION
OCT 14 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH PADGETT, No. 19-16383
Plaintiff-Appellant, D.C. No. 5:04-cv-03946-EJD
v.
MEMORANDUM*
BRIAN LOVENTHAL,
Defendant,
and
A. CURTIS WRIGHT,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Argued and Submitted September 23, 2021
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and RAWLINSON, Circuit Judges, and DRAIN,** District
Judge.
Plaintiff Joseph Padgett appeals the district court’s order awarding him
attorney’s fees in this long running dispute over enforcement of a fence height
ordinance. See Padgett v. Loventhal, 706 F.3d 1205, 1206, 1208 (9th Cir. 2013)
(remanding for an explanation of attorney’s fee award). In the next appeal, we
vacated the district court’s dismissal of Padgett’s claims for the pretrial services
fees incurred by the McManis Faulker law firm and remanded for an award of fees.
See Padgett v. City of Monte Sereno, 722 F. App’x 608, 611-12 (9th Cir. 2018).
This is an appeal from the district court’s award of $128,631.
Padgett challenges the district court’s reduction from the lodestar. That
figure of more than $600,000 represented a reasonable hourly rate multiplied by
the hours McManis worked on plaintiffs’ claims, including work on claims on
which Padgett did not prevail. Padgett argues that the district court relied on the
erroneous theory that Padgett was entitled to fees sufficient only to reimburse him
for fees he was actually obligated to pay.
We assume Padgett is correct that the prevailing party is entitled to
reasonable attorney’s fees even if none were paid. See Vargas v. Howell, 949 F.3d
**
The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
2
1188, 1198 (9th Cir. 2020). A party is not entitled to fees, however, for claims on
which it did not prevail. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983).
After summary judgment, only Padgett’s First and Fourteenth Amendment claims
remained. The district court dismissed his Fourteenth Amendment claim before it
was submitted to the jury. Padgett prevailed on only one of his seven claims.
Padgett is thus not entitled to the full lodestar amount he now seeks. While the
district court may have reduced the lodestar for an inappropriate reason, the district
court was well aware of the fact that Padgett enjoyed only a partial victory and that
he was not entitled to the entire lodestar amount.
The issue now before this Court is whether the amount awarded was
reasonable. Given this Court’s familiarity with the nature and history of this
litigation, we must conclude that it was.
AFFIRMED.
3
Joseph Padgett v. A. Curtis Wright
Combined Opinion